To Open or Not To Open
-by Joseph J. Sullivan, C.S., Sullivan Mediations
If Hamlet was a mediator, this may have been his question!
Different types of civil litigation may require varying approaches during settlement discussions and this is a particular attribute of utilization of private mediation: the parties can pretty well design their own process, unlike any court proceedings where the Rules of Civil Procedure and pre-trial judges govern in prescribed fashion.
Typically, personal injury and insurance litigators wish to make opening statements at mediation for various reasons. Trial outcomes of these types of actions often hinge heavily on the believability and sympathy of an injured party. Mediation openings allow the actual parties to interact, likely for the first time. Examinations for Discovery may have taken place by the lawyers, but personal injury mediations allow the claims’ professional and the injured party to meet and assess each other eye to eye. This is useful.
In such cases, counsel highlight the best features of his or her case and often bluntly point out the findings of fact that would lead to a favourable trial result. Here, counsel demonstrates the risk to the opposing party of not settling. Again, useful.
Commercial and employment disputes are different. Most times the litigants have had a longstanding relationship and know each other well. These mediations must be approached with care because the parties may well have business dealings in the future and therefore “bringing down the temperature” of the mediation session is quite important. Also, in these cases each litigant is often sophisticated and well informed of the issues in dispute, the risk and expense of trial.
For this reason, parties in commercial and employment cases frequently decline the opportunity to make an opening statement at mediation. In fact, contentious opening statements might actually annoy the other party and make the case harder to settle. Most times, there’s no need for the decision makers to get acquainted or assess the credibility of the opposition; they are well known to each other. Rather than create a barrier at mediation with unpleasantries, these litigants typically move to the exchange of offers quickly.
In conclusion, I recommend the parties consider any special “rules of the road” they might implement at mediation beforehand. Perhaps involved the mediator a few weeks before the mediation session.
Bringing down any barriers can greatly assist in prompt resolution.